Granovsky et al. v. Ontario, (1998) 53 O.T.C. 375 (GD)

• Judge: Greer, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: February 12, 1998
• Jurisdiction: Ontario
• Citations: (1998), 53 O.T.C. 375 (GD)

Granovsky v. Ont. (1998), 53 O.T.C. 375 (GD)

MLB headnote and full text

Temp. Cite: [1998] O.T.C. TBEd. FE.120

Shirley Granovsky and Donald Carr, Estate Trustee of the Estate of Philip Granovsky (applicants) v. Her Majesty The Queen in Right of Ontario (respondent)

(Court File No. 01-4524/96)

Indexed As: Granovsky et al. v. Ontario

Ontario Court of Justice

General Division

Estates List

Greer, J.

February 12, 1998.

Summary:

A testator left two wills. He distinguished, in the two wills, the type of assets which formed the capital to be administered under each will. A limited grant of the primary will was issued by the court. Probate fees were paid for the assets administered under the primary will only. The Estate trustees were able to deal with the assets under the secondary will without probate. At issue was whether the secondary will must also be submitted to probate and whether probate fees must be paid on assets governed by it.

The Ontario Court (General Division) held that there was no requirement for the trustees to submit the testator's secondary will to probate or to pay probate fees on the value of the assets governed by it. The court examined ss. 32(3) (evaluation of limited grant) and 53 (fees to be on value of whole estate) of the Estates Act, concluding that s. 32(3) modified s. 53. If probate fees had to be paid on the whole value of the estate wherever situate, and not on just on the whole value of the assets being administered under the primary will, which was the only will being submitted to probate, the legislation must clearly provide that.

Executors and Administrators - Topic 1037

Grant of probate or letters of administration - Application for grant - Multiple wills - See paragraphs 4 to 26.

Cases Noticed:

In The Goods of Astor, [1876] 1 P.D. 150, refd to. [para. 10].

In The Goods of Murray, [1896] 1 P.D. 65, refd to. [para. 10].

Sadler Estate, Re (1991), 114 N.B.R.(2d) 262; 289 A.P.R. 262; 41 E.T.R. 222 (Prob. Ct.), dist. [para. 12].

Von Brentano Estate, Re, [1911] P. 172, refd to. [para. 13].

Cohen's Executors and London County Council, In re, [1901] 1 Ch. 187, refd to. [para. 13].

Creighton Estate, Re (1987), 80 N.S.R.(2d) 233; 200 A.P.R. 233; 27 E.T.R. 81 (Prob. Ct.), refd to. [para. 14].

Douglas-Menzies v. Umphelby, [1908] A.C. 224 (P.C.), refd to. [para. 15].

Canadian Broadcasting Corp. and Knapp v. Quebec Police Commission, [1979] 2 S.C.R. 618; 28 N.R. 541, refd to. [para. 17].

Eurig Estate v. Ontario Court (General Division) Registrar (1997), 96 O.A.C. 354 (C.A.), refd to. [para. 20].

Royal Trust Co. v. Downton (1980), 34 Nfld. & P.E.I.R. 308; 95 A.P.R. 308; 109 D.L.R.(3d) 221 (Nfld. C.A.), refd to. [para. 25].

Statutes Noticed:

Estates Act, R.S.O. 1990 c. E-21, sect. 32(1), sect. 32(3), sect. 53 [para. 4].

Authors and Works Noticed:

Brule, J.A., Multiple Wills, 5 E.T.R. 200, pp. 201, 209 [para. 9].

CCH Canadian Estate Planning Guide, p. 10,007 [para. 16].

Driedger, Elmer A., The Construction of Statutes (2nd Ed. 1983), generally [para. 6].

Macdonell, Sheard and Hull, Probate Practice (4th Ed. 1996), p. 185 [para. 11].

Williams, Mortimer and Sunnucks, Executors, Administrators and Probate (17th Ed. 1993), p. 316 [para. 11].

Counsel:

Wolfe D. Goodman, Q.C., Archie J. Rabinowitz and Neena Gupta, for the applicants;

M. Michelle Smith, for the respondent.

This application was heard on November 10 and 12, 1997, before Greer, J., of the Ontario Court (General Division), who delivered the following judgment and released the decision on February 12, 1998.